THIS TRIAL CHAMBER of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991
(the “Tribunal”), is seized of
a “Motion Objecting to the Form of the Indictment,” filed
on 3 November 2005 (the
“Defence Motion”) by Sredoje Lukic (the “Accused”),
and the “Prosecution’s Motion
to Amend the Indictment,” filed on 17 November 2005
(the “Motion to Amend the Indictment”).

Background

1. On 12 July 2001, an Amended Indictment was filed
against Milan Lukic, Sredoje Lukic and Mitar Vasiljevic.1 Neither
Milan Lukic nor Sredoje Lukic was before the Tribunal,
however, and trial proceeded against Mitar Vasiljevic
alone, leading to a Trial Chamber Judgement on 29
November 2002
2 and a subsequent Appeals
Chamber Judgement on 25 February 2004.3

2. On 1 February 2005, the Prosecution filed a motion
with the President of the Tribunal
4 to constitute a Referral
Bench to consider a request to transfer the case against
the Accused and Milan Lukic to the courts of Bosnia
and Herzegovina pursuant to Rule 11 bis of the
Rules of Evidence and Procedure (the “Rules”).5
The President granted the motion and constituted the
Referral Bench,6
which is currently considering the Prosecution’s request.7

3. On 16 September 2005, the Accused was transferred
to the seat of the Tribunal and the President of
the Tribunal assigned the case against the Accused
to Trial Chamber III.8 On
10 November 2005, the Trial Chamber designated Judge
Iain Bonomy as Pre-Trial Judge.9
Milan Lukic has yet to be transferred to the seat of
the Tribunal.

4. The Accused filed the Defence Motion on 3 November
2005, arguing that the Amended Indictment, under
which Mitar Vasiljevic was tried and which still
names both the Accused and Milan Lukic, is impermissibly
vague and fails properly to plead the Accused’s
criminal responsibility under Article 7(1) of the
Statute of the International Criminal Tribunal for
the former Yugoslavia (the “Statute”).10

5. The Prosecution responded by “agree[ing] to amend
the indictment to meet many of the concerns raised
by the Defence,”11
and by filing its Motion to Amend the Indictment along
with a proposed Second Amended Indictment.12 In
light of these submissions, the Prosecution asks that
the Defence Motion be dismissed.13

6. The Accused filed a reply to the Prosecution’s filings,
stating that the Prosecution acted improperly by submitting
the proposed Second Amended Indictment before the
Trial Chamber had an opportunity to decide the Defence
Motion.14
The Accused argues that the correct course of action
is for the Trial Chamber to decide the Defence Motion
and, should the Chamber agree that the Amended Indictment
is defective, instruct the Prosecution on how to cure
the defects.15
Only then, says the Accused, may the Prosecution submit
a proposed amended indictment.16

7. Despite his contention that the Motion to Amend
the Indictment was filed out of order, the Accused
also submitted a response to that motion,17
and the Prosecution filed a reply.18

Discussion

8. As a preliminary matter, the Trial Chamber must
determine which motion to decide. Following submission
of the Defence Motion, which alleged defects in the
form of the Amended Indictment, the Prosecution
filed its Motion to Amend the Indictment. Rather
than offering a response to the Defence Motion on
the merits, the Prosecution simply “request[ed]
that the Motion be dismissed”19
in light of the Prosecution’s view that the proposed
Second Amended Indictment “
meet[s] many of the concerns raised by the Defence”20
and thus, presumably, renders the Defence Motion moot.
The Accused contests the Prosecution’s assertion that
the proposed amended indictment addresses his objections
to the Amended Indictment,21 and
argues that the Prosecution’s response amounts to
a concession that the Amended Indictment should be
stricken.22

9. There is nothing in the Rules that prevents the
Prosecution from answering a motion objecting to
the form of an indictment with a proposed amended
indictment that is said to respond to those objections.23
Despite the possibility that responding substantively
to the Defence Motion would have been procedurally
more straightforward than filing the Motion to Amend
the Indictment, the fact is that that Motion is now
before the Chamber. Even if the Chamber were to grant
the Defence Motion and order revision of the Amended
Indictment
– assuming that the Chamber found such action legally
correct – that would not dispose
of the Motion to Amend the Indictment, which the Prosecution
would presumably refile. Thus in the interests of judicial
economy and pursuant to the Trial Chamber’s
power under Rule 54 to issue orders that are necessary
for the preparation of trial, the Chamber will dismiss
the Defence Motion without prejudice and decide the
Motion to Amend the Indictment.

10. As various Trial Chambers have noted, “the test
for whether leave to amend [an indictment] will be
granted is whether allowing the amendments would cause
unfair prejudice to the accused.”24 A “decision
to accept an amendment will normally be forthcoming
unless prejudice can be shown to the accused,”25 and “an
amendment will not be refused merely because it assists
the prosecution quite fairly to obtain a conviction.”26 “Two
factors particularly are relevant in determining whether
amendment of an indictment would cause unfair prejudice:
(1) notice, i.e., whether the Accused has been given
an adequate opportunity to prepare an effective defence;
and (2) whether granting the amendments will result
in undue delay.”27

11. In his response to the Motion to Amend the Indictment,
the Accused first argues that granting the Motion
would unfairly prejudice him by removing the presumption
of innocence that must operate at his trial.28
The Accused’s argument on this point is not altogether
clear but he appears to assert that, because the Second
Amended Indictment’s allegations reflect some of the
factual findings on which Mitar Vasiljevic’s conviction
in the Trial Chamber was based, repeating those facts
as allegations here will make it appear at trial that,
in the Accused’s words, “he is already convicted.”29
The Prosecution replies that there is “[n]o question
of a loss of the presumption of innocence,”30 and
quotes the
Vasiljevic trial Judgement:

The findings by the Trial Chamber... have not been
made for the purpose of entering criminal convictions
against... other individuals. In particular, the
two co -accused who have not yet been arrested, Milan
Lukic and Sredoje Lukic, have not been found guilty
beyond reasonable doubt in this trial of any of the
crimes charged against them in the Indictment. They
are not in any way bound by the findings made in
this trial, and they will be able to challenge fully
any evidence given in this trial which implicates
them if it is given against them in their own trial
before this Tribunal.31

12. The Trial Chamber agrees completely with the statements
above. Every accused is presumed innocent until
proven guilty beyond a reasonable doubt,32
which the Prosecution bears the burden of demonstrating
at trial. Additionally, the Prosecution here notes
that it has not asked this Chamber to judicially notice
any of the adjudicated facts in the Vasiljevic trial
Judgement,33
and this Chamber would in any case look sceptically
upon a motion filed pursuant to Rule 94(B) that sought
judicial notice of a fact which would negate the presumption
of innocence. The Accused’s argument on this point
is therefore rejected.

13. The Accused next argues that granting the Motion
to Amend the Indictment would unfairly prejudice
him and give the Prosecution an improper tactical
advantage by increasing the chances of the case against
him being transferred to Bosnia and Herzegovina.34
The Accused contends that the Amended Indictment, which
alleged that the Accused committed crimes “throughout
the municipality of Visegrad and elsewhere in the territory
of the Republic of Bosnia and Herzegovina,”35
made it “hard for the Referral Bench to decide to transfer
this case,”36
whereas the Second Amended Indictment, which limits
the geographical area of the charged crimes to the
municipality of Visegrad,37
gives “an easy way for the Referral bench to transfer
this case.”38
As the Prosecution points out, however, the Accused
makes utterly no attempt to explain this assertion.
The Trial Chamber agrees, and also agrees with the
Prosecution that, even if the proposed amended indictment
makes transfer more likely, the Accused has not explained
how that prejudices him. If the Accused is suggesting
that trial in the courts of Bosnia and Herzegovina
would be unfair, he offers nothing to support such
a suggestion, rejection of which the Appeals Chamber
has found reasonable.39
The Accused’s argument on this point is therefore rejected.

14. The Accused also argues that the proposed Second
Amended Indictment raises new charges, and therefore
must be rejected because it fails to satisfy the
requirements of Rule 50(A)(ii).40 Under
the Tribunal’s
jurisprudence concerning Rule 50(A)(ii), “leave to
amend [an indictment] is not granted if the material
provided by the Prosecution does not meet the prima
facie
standard, as set forth in Article 19(1) of the
Statute, to support proposed amendments.”41 “In
case the amendment sought includes new charges against
an accused, according to Rule 50(A)(ii) of the Rules,
the Trial Chamber must be satisfied that these new
charges are supported by evidence establishing a prima
facie case against an accused....”42

15. In the “Prosecution’s Reply to Defence Response
to Motion to Amend Indictment” (the “Prosecution’s
Reply”),
the Prosecution

accepts [that] some of the amendments to the
indictment proposed by the Prosecution may fall
within the definition... of “new charge.” The Prosecution
therefore does not contest the right of the accused
to enter a plea on the charges contained in the
Second Amended Indictment, and to file a preliminary
motion pursuant to Rule 72 in respect of the Second
Amended Indictment, if the Prosecution is granted
leave to amend the indictment.43

This does not indicate, however, which proposed amendments
the Prosecution considers new, nor does it identify
any supporting material regarding such charges. Moreover,
the Reply does not address the Accused’s assertion that the Second Amended Indictment
fails to satisfy Rule 50(A)(ii). In light of this, the Trial Chamber ordered the
Prosecution to “(a) specify which of the proposed amendments it concedes to be new
charges within the meaning of the Tribunal’s jurisprudence,
and (b) identify supporting material for those new
charges, thus enabling a disposition of the Motion
pursuant to the requirements of Rule 50(A)(ii).”44

16. The Prosecution answered that Order by filing
the “Prosecution’s
Clarification Concerning
‘New Charges’ and Submission of Supporting Material” (the “Prosecution’s
Clarification”), along with a Confidential Annex containing
supporting material that the Prosecution states had
been submitted to both the Defence and the Judge who
confirmed the prior indictment.45 The
Accused declined to respond to the Prosecution’s Clarification.46
The Clarification alternates between phrases such as “[some]
amendments... do constitute ‘new charges,’”47 and “
[some] counts... may be considered to be ‘new charges.’”48
Despite this ambiguity as to whether the Prosecution
is actually conceding that certain allegations levy
new charges, given that the Trial Chamber’s Order directed
the Prosecution to “specify which of the proposed
amendments it concedes to be new charges,” the Chamber
considers that all of the amendments identified in
the Prosecution’s
Clarification are conceded to raise new charges. The
Prosecution identifies two new factual allegations,
and five counts of the proposed indictment, as constituting
new charges. These charges are set out in the following
three paragraphs.

17. First, the Prosecution concedes that “the addition
of the words ‘and the destruction
of houses’ to paragraph 4(e) of the Proposed Second
Amended Indictment may be considered to constitute
a ‘new charge.’”49
Paragraph 4(e) falls under Count One of the new indictment,
which charges the Accused with Persecutions, a crime
against humanity. Having reviewed the supporting material
in the Prosecution’s Confidential Annex, the Trial
Chamber is satisfied that, pursuant to Rule 50(A)(ii), “there
is evidence which satisfies the [prima facie] standard
set forth in Article 19, paragraph 1, of the Statute
to support the proposed amendment.” Given that the
destruction of houses is a newly-alleged act upon
which an accused might be found guilty of the crime
of Persecutions, the Accused must have an opportunity
to plead to this alleged crime.50
The Trial Chamber notes that the Accused should be
asked to plead to the crime of Persecutions only with
respect to the alleged destruction of houses; the Accused
has already entered a plea to Count One with respect
to the other factual averments contained therein.51

18. Second, the Prosecution identifies the following
new allegation as raising a new charge:

A group of armed men, including Milan Lukic, Sredoje Lukic and
Milan Susnjar (also known as “Laco”) arrived at
the Memic house, ordered the people in the group
to hand over their money and valuables, subjected
them to a strip search and then left the house,
instructing the group to remain in the Memic house
overnight.52

This text appears in paragraph seven of the Second Amended Indictment, which falls
under Counts Eight, Nine, Ten, Eleven and Twelve. Counts Eleven and Twelve charge
the Accused with committing, respectively, Inhumane Acts, a crime against humanity, and Cruel Treatment, a violation of the laws or customs of war. Having reviewed
the supporting material in the Prosecution’s Confidential Annex, the Trial Chamber
is satisfied that this proposed amendment satisfies the requirements of Rule 50(
A)(ii). Given the fact that the Accused could be convicted of Count Eleven or Count
Twelve, or both, if found to have committed the newly-alleged acts above, he must
have the chance to enter pleas. When he does, he should be asked to enter pleas
to the counts only with respect to the acts alleged in the passage quoted above.

19. Third, the Prosecution concedes that Counts
Five,53
Eight,54 Twelve,55
Thirteen56 and Seventeen57 of
the Second Amended Indictment are new. The Chamber
is satisfied that the Prosecution’s
Confidential Annex contains adequate supporting material
for these counts. Given that they are concededly new,
and that the acts alleged in conjunction with them
could support convictions, the Accused must have an
opportunity to plead to them.

20. Anticipating a ruling that the Second Amended Indictment
levies new charges, the Accused argues that granting
the Motion to Amend the Indictment would trigger
a prejudicially-long period of time to lodge objections.58
As the Prosecution notes,59 however,
giving an accused extra time to file additional challenges
to an indictment is generally prejudicial only if
trial is imminent. The Trial Chamber in Prosecutor
v. Naletilic and Martinovic stated, for example,
that “the amendment [to the
indictment there] has certainly not delayed the trial
of the accused, which is not yet scheduled to begin.”60 Thus “
considering that pre-trial proceedings in this case
have just begun, so [that] amending the indictment
at this stage, even if it should include new charges,
will neither deny the Accused an adequate opportunity
to prepare his defence nor cause undue delay,”61 the
Trial Chamber finds that giving the Accused additional
time to file challenges to the Second Amended Indictment
will not unfairly prejudice the Accused. The Accused’s
argument on this point is therefore rejected.

21. Finally, the Accused contends that the Prosecution
has not adequately pleaded the
mens rea for the charged crimes.62
As this Trial Chamber has stated, “[w]here the state
of mind with which the accused carried out his alleged
acts is relevant, the Prosecution must plead either
(i) the relevant state of mind as a material fact...
or (ii) the facts from which the relevant state of
mind is to be inferred.”63
In Count One of the Second Amended Indictment, the
Prosecution alleges that the Accused, “with specific
intent to discriminate on political, racial or religious
grounds, committed the crime of persecutions and,
with awareness of the discriminatory intent of other
perpetrators, aided and abetted in the execution of
the crime.”64
This is an adequate pleading of the state of mind required
for Persecutions,65
and although none of the Second Amended Indictment’s
remaining 20 counts explicitly pleads a requisite
state of mind, the Prosecution notes in its Motion
to Amend the Indictment that it “has pleaded...
the facts from which the mens rea of
the other alleged crimes may be inferred.”66
Under the jurisprudence of the Tribunal cited above,
this is acceptable. The Accused’s
argument on this point is therefore rejected.

Disposition

22. For the reasons above, pursuant to Article 19 of
the Statute and Rules 50, 54 and 127 of the Rules,
the Motion to Amend the Indictment is GRANTED. In
addition, the Trial Chamber ORDERS as follows:

(1) leave to file the Prosecution’s Reply to Defence
Response to Motion to Amend
Indictment is GRANTED and the Chamber accepts
the reply;

(2) the Defence Motion, Prosecution’s Response to Defence
Motion Objecting to the Form of the Indictment and
the Defence Counsel’s Application for Leave to Reply
to Prosecution’s
Response to Defence Motion Objecting to the Form of
the Indictment are all DISMISSED
without prejudice;

(3) the Accused may file, within 30 days of the filing
of this Decision,

(a) preliminary motions pursuant to Rule 72 in respect
of the new charges; and

(b) challenges to the Second Amended Indictment that

(i) were contained in the Defence Motion, and

(ii) apply to the Second Amended Indictment, and

(iii) have not been disposed of in this Decision.

The Prosecution shall have 14 days from the filing of any such challenges to file
a response, if any;

(4) an appearance before Judge Bonomy, at which the
Accused will be asked to plead to the indictment’s
new charges, is hereby scheduled for Monday, 13 February
2006, at 2:30 p.m. in Courtroom II.